Employment Rights

In British Columbia interns are considered employees and entitled to minimum wage unless they fall within (1) the student exemption or (2) the professional exemption, which are described below:

(1) The student exemption applies positions that provide “hands-on” training as part of a formal educational program (called a practicum in the Act).

(2) The professional exemption applies to people training to be professionals in designated fields such as medicine, law, nursing, engineering and accountant. Therefore, interns who are training to join one of the listed professions are not entitled to certain employment standards such as hours of work, overtime, rest period and the minimum wage.

For further clarity, the British Columbia Ministry of Labour has defined “internship” as on-the-job training that continues to form an employment relationship, requiring minimum wage to be paid:

An “internship” is on-the-job training offered by an employer to provide a person with practical experience. Often internships are offered to persons who have completed a diploma or degree program and are seeking employment. Completing an internship does not itself result in an academic certificate or diploma. If the duties performed by interns fall within the definition of “work” contained in the Act, the intern falls within the definition of “employee”, and the agency using the services of an intern falls within the definition of “employer”, internships will be considered “work” for the purposes of the Act.

Effective September 15, 2016, the hourly minimum wage in British Columbia $10.85 for most employees and $9.60 for employees serving liquor as part of their regular job.

Alberta

In Alberta interns are considered employees and entitled to minimum wage unless they fall within (1) the student exemption or (2) the professional exemption, which are described below:

(1) The student exemption applies to students engaged in “a formal course of training approved by the Director”, “in an off-campus education program provided under the School Act”, or “in a work experience program approved by the Minister of Enterprise and Advanced Education or the Minister of Human Services.” Therefore, interns whose internships are not approved by the Director, a school district, or the appropriate Minister are entitled to employment standards including the minimum wage.

(2) The professional exemption applies to people training to be professionals in designated fields such as medicine, law, nursing, engineering and accountant. Therefore, interns who are training to join one of the listed professions are not entitled to certain employment standards such as hours of work, overtime, rest period and the minimum wage.

Effective October 1, 2016, the hourly minimum wage in Alberta is $12.20 for most employees. The minimum wage will rise to $13.60 on October 1, 2017 and $15.00 on October 17, 2018.

Saskatchewan

In Saskatchewan interns are considered employees and entitled to minimum wage and employment standards protections unless they fall within (1) the student exemption, (2) the professional exemption, or (3) the volunteer exemption, which are described below:

(1) The student exemption states that “student learners” are not entitled to any employment standards, including the minimum wage. A “student learner” is an individual enrolled in an educational program at a recognized educational institution who is receiving skills training that is a requirement to receive a designation from that educational institution. The regulations clearly distinguish “student learners” from “interns,” which are defined below.

(2) The professional exemption applies to certain professionals and those training to join those professions, such as medical interns, students-at-law, students in accountancy or other trainees or students. The regulations state that these employees are not entitled to employment standards related to overtime hours, overtime pay, and modified work arrangements, but are entitled to the minimum wage.

(3) The volunteer exemption provides that individuals who work for a non-profit organization or institution in programs that are educational, therapeutic or rehabilitative are not entitled to minimum wage. The effect of this section is an absolute prohibition on volunteers or unpaid workers for for-profit organizations.

Unlike other provinces, Saskatchewan includes persons undergoing training within their definition of employee and specifically states that “interns” are entitled to employment standards, including minimum wage:

“employee includes…(ii) a person whom an employer permits, directly or indirectly, to perform work or services normally performed by an employee; (iii) a person being trained by an employer for the employer’s business.”

“intern” means (i) a person whom an employer permits, directly or indirectly, to perform work or services normally performed by an employee; or (ii) a person being trained by an employer for the employer’s business.

Effective October 1, 2016, the hourly minimum wage in Saskatchewan is $10.72.

Manitoba

In Manitoba, all interns are considered employees and entitled to minimum wage unless they fall within (1) the student exemption or (2) the professional exemption, (3) the volunteer exemption, or (4) the government training exemption, which are described below:

(1) The student exemption states that the entire Employment Standards Code, which includes the right to minimum wage, does not apply to employees who is given “training or work experience for a limited period of time” through a program implemented or approved by a government authority or school board.

(2) The professional exemption states that certain minimum employment standards in the Employment Standards Code, including the right to minimum wage, do not apply to employees who are qualified and practising in certain professions, or employed as a “student-in-training” for one of those professions. Professionals and students-in-training are, however, entitled to minimum standards related to vacations, maternity leave, termination of employment, and equal wages (Reg. 62/99).

(3) The volunteer exemption states that the Employment Standards Code, which includes the right to minimum wage, does not apply to an employee who works as a volunteer for a religious, philanthropic, political, patriotic or charitable institution. The regulations also state that employment standards do not apply to employees working as “a volunteer camp counsellor at a residential camp that is operated by a charitable organization” (Reg. 62/99).

(4) The government training exemption states that minimum wage does not apply to employees who are given training or work experience for a limited period of time through a program implemented or approved by provincial or federal government authorities.

Effective October 1, 2015, the hourly minimum wage in Manitoba is $11.00 per hour.

Ontario

In Ontario interns are considered employees and entitled to minimum wage unless they fall within (1) the student exemption, (2) the professional exemption, or (3) the trainee exemption, which are described below:

(1) The student exemption states that the Employment Standards Act does not apply to students working as a part of a program approved by a secondary school board, college of applied arts and technology, or university. This includes high school, college and university co-ops, internships and other experiential learning placements

(2) The professional exemption states that professionals and students training to join those professions are not entitled to certain employment standards, including minimum wage, hours of work, overtime pay, public holidays, and vacation pay

(3) The trainee exemption applies to persons receiving training from an employer, but only under very narrow and specific circumstances. A work is considered a “trainee” if all of the following conditions are met:

The training is similar to that which is given in a vocational school.

The training is for the benefit of the intern. You receive some benefit from the training, such as new knowledge or skills.

The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.

Your training doesn’t take someone else’s job.

Your employer isn’t promising you a job at the end of your training.

You have been told that you will not be paid for your time.

Therefore, internships that meet all six conditions above may result in the intern being exempt from Ontario’s employment standards. However, the threshold for this test is high and if a single one of these conditions is not met, the intern is considered an employee and entitled to employment standards and minimum wage in Ontario.

Effective October 1, 2015, the hourly minimum wage in Ontario is $11.25 for most employees, $10.55 for students under age 18 who work 28 hours a week or less when school is in session, or work during a school break or summer holidays.

Quebec

In Québec interns are considered employees and entitled to minimum wage unless fall within (1) the student exemption, (2) the training exemption, or (3) the volunteer exception.

(1) The student exception states that Québec’s An Act Respecting Labour Standards does not apply to students who work during the school year “in an establishment selected by an educational institution pursuant to a job induction program approved by the Ministère de l’Éducation, du Loisir et du Sport.” The legislation also exempts students “employed in a vacation camp or in a social or community non-profit organization” from employment standards related to hours of work and annual leave.

(2) The apprenticeship exemption provided in the Commission des Normes du Travail’s Interpretation Guide states that apprentices and trainees receiving vocational training are entitles to wages determined by separate legislation, instead of the provincial minimum wage.

(3) The volunteer exception provided in the Commission des Normes du Travail’s Interpretation Guide states that volunteers are exempt from minimum wage, but cautions that the situation must be carefully analysed to determine that the individual is not performing and, in fact, an employee. The Interpretation Guide provides criteria where individual who are “performing any work whatsoever”, in “a relationship of subordination” or working in a “profit-oriented undertaking” are very likely to be considered employees entitled to wages.

Québec’s An Act Respecting Labour Standards defines “employee” broadly to include not just “a person who works for an employer and who is entitled to a wage,” but also a worker who is “a party to a contract, under which he or she undertakes to perform specified work for a person within the scope and in accordance with the methods and means determined by that person.”

The Commission des Normes du Travail’s Interpretation Guide seems to squarely address the misclassification of interns when it states:

…alleging that the smooth operation of the enterprise does not require the hiring of new employees, that the applicant(s) has (have) no experience or that the workers agreed to work for free does not justify non-compliance with labour standards.

Effective May 1, 2015, the minimum wage in Québec is $10.55 for most employees and $9.05 for employees receiving tips.

New Brunswick

In New Brunswick provincial laws do not provide clear guidance on when interns and students are considered employees or entitled to minimum wage.

While the Employment Standards Act narrowly defines “employee” as “a person who performs work for or supplies services to an employer for wages,” the New Brunswick labour and Employment Board wrote in 2011 that the legislation “does not allow for unpaid training time.” However, the case only addressed unpaid training prior to assuming work with the training employer, and did not unpaid training for future employment with another employer.

Effective December 31, 2014, the hourly minimum wage in New Brunswick is $10.30 for most employees.

Newfoundland & Labrador

In Newfoundland and Labrador provincial laws provide little clarity on when interns and students are considered employees and entitled to minimum wage. Arguably, interns can be included in the broad definition of “employee” in the Labour Standards Act:

“employee” means a natural person who works under a contract of service for an employer

The Labour Standards Act clarifies the term “contract of service” and creates an exception for employees qualified or training for qualification in certain professions:

“contract of service” means a contract, whether or not in writing, in which an employer, either expressly or by implication, in return for the payment of a wage to an employee, reserves the right of control and direction of the manner and method by which the employee carries out the duties to be performed under the contract, but does not include a contract entered into by an employee qualified in or training for qualification in and working for an employer in the practice of (i) accountancy, architecture, law, medicine, pharmacy, professional engineering, surveying, teaching, veterinary science, and (ii) other professions and occupations that may be prescribed

Effective October 1, 2015, the hourly minimum wage in Newfoundland and Labrador is $10.50 for most employees.

Prince Edward Island

On Prince Edward Island provincial laws provide some clarity on when interns and students are considered employees and entitled to minimum wage. Interns can be included in the definition of “employee” in the Employment Standards Act, which includes persons receiving training:

“employee” means a person who performs any work for or supplies any services to an employer for pay, and includes…(ii) a person who is being trained by an employer to perform work for or supply services to the employer…

The Employment Standards Act does not, however, provide for specific exceptions from employment standards for students or professionals.

Effective July 1, 2015, the hourly minimum wage for Prince Edward Island is $10.50 for most employees.

Nova Scotia

In Nova Scotia provincial laws provide some clarity on when interns and students are considered employees and entitled to minimum wage. Under the Labour Standards Code“employee” is defined broadly as “a person employed to do work” and arguably would include interns and students. The regulations provide several exceptions to minimum wage: (1) the apprenticeship exception, (2) the training exception, and (3) the non-profit exception.

(1) The apprenticeship exception states that apprentices are not entitled to minimum wage and are instead regulated by separate legislation.

(2) The training exception states that “all persons receiving training under government sponsored and government approved plans” are not entitled to minimum wage.

(3) The non-profit exception states that “persons employed at a playground or summer camp operated on a non-profit basis” are not entitled to minimum wage.

Effective April 1, 2015, the hourly minimum wage in Nova Scotia is 10.60 for “experienced employees” and $10.10 for “inexperienced employees.”

“Inexperienced employee” means an employee who has not been employed by his or her present or other employer for a total period of three calendar months to do the work for which the employee is employed, but it does not include a person in the employ of an employer for whom he or she has completed three calendar months of employment

“experienced employee” means an employee who is not an inexperienced employee